Mass. court rejects challenge to Cape Wind permit

Merrisa Brown, Jay Lindsay - Associated Press

Published 10:06 pm, Wednesday, September 1, 2010

BOSTON — Developers of a proposed Nantucket Sound wind farm were cleared to move forward Tuesday when Massachusetts' high court rejected a claim that the project sidestepped local opposition to win a key permit.

Cape Wind project, a 130-turbine proposal that would be the nation's first offshore wind farm, was given permission last year by a state board to build power transmission lines through state waters. The Supreme Judicial Court backed that decision in a 4-2 ruling.

Cape Wind had gone to the state after a local board, the Cape Cod Commission, rejected in 2007 its request to build about 18 miles of undersea and underground transmission cables to connect to the regional electric power grid. The local board said Cape Wind hadn't provided sufficient information.

Opponents argued the state exceeded its powers and was trumped by the local ruling, but the court disagreed. It said that that interpretation would mean the state Energy Facilities Siting Board's authority applied everywhere but Cape Cod.

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Cape Wind opponents also argued the state board was wrong to consider only the transmission lines' effect on Massachusetts, rather than the entire project's effect. But the court said that doing so would have essentially given the board the power to kill a project under federal jurisdiction.

The project is being built entirely in federal waters, though the transmission cables run through state waters, which extend to three miles offshore.

"The siting board does not have authority to do indirectly what it cannot do directly," the court wrote.

Cape Wind, estimated to cost at least $2 billion, was approved this year by U.S. Interior Secretary Ken Salazar after more than eight years of federal review. Developers say the project, which aims to begin operating by late 2012, will provide about three-quarters of Cape Cod's power.

Backers say it will help fight climate change, bring jobs and jump-start a U.S. offshore wind industry that's lagged behind Europe and China. But opponents say the project is a giveaway to a private developer that will endanger marine and bird life and mar historic vistas.

In a dissent to Tuesday's ruling, Chief Justice Margaret Marshall said the state board does not have the authority the court claimed and that the ruling "establishes a dangerous and unwise precedent."

"A wind farm today may be a drilling rig or nuclear power plant tomorrow," she wrote.

Marshall also agreed the state board should have considered the entire project's effect on the state. She cited this year's oil spill in the Gulf of Mexico, saying it showed that "the failure to take into account in-state consequences of federally authorized energy projects in federal waters can have catastrophic effects on state tidelands and coastal areas, and on all who depend on them."

Cape Wind president Jim Gordon called Tuesday a "great day," and said the decision showed the state board had acted carefully.

Cape Wind's victories in court and over regulatory challenges are proof of its merit, Gordon said.

"I recognize that there is a small, very vocal and well-funded opposition group that sadly is delaying this project," he said. "I hope that with today's decision they might reflect and join hands with the rest of the citizens that want to transition to a cleaner energy future."

Audra Parker, head of the chief opposition group, the Alliance to Protect Nantucket Sound, called the decision "an outrageous violation of community rights."

Though the decision can't be appealed, the fight to kill the project continues on many fronts, she said, including pending legal challenges to Cape Wind's federal approval.

She sees growing public opposition to the high cost of the project's power, she said.

"This is far from over, despite this ruling," Parker said.

Next week, the Massachusetts Department of Public Utilities will begin considering whether Cape Wind's pending 15-year deal with National Grid is a good deal for ratepayers. Under the deal, the utility would buy half of Cape Wind's power, starting at 18.7 cents per kilowatt hour. That's about twice what the utility pays for power from conventional sources, but Cape Wind backers say that given the volatility of fossil fuel costs, the price will be a good deal over the life of the contract.